ptsd Corrected Award Letter

[Berta]

The VA made clearly erroneous statements in my May 2009 award letter and I asked for correction on that basis.

I just got the 'correction'-it is worse than the one I wanted corrected. The director's office (of course I called them immediately) had a VSO call me yesterday but he didn't have a clue- another call to the director's office promised someone else would call me back on Monday-I asked for someone to call me this time who actually knows VA regs and case law.

Since I dont expect them to find anyone who actually has that ability at the Buffalo VARO - I am also preparing letter to someone at VA in DC who offered to help on this matter-but I wanted to make sure I took as many steps I could first to get this straightened out meself.

I also got with this letter another SSOC-this is the fourth one on my CUE claims.I have responded to them all and now they want me to respond again.

If any of you read my testimony to the Sub Committee Investigations/Oversight- the 53 submissions I made that VARO had ignored are building up into well over 60 submissions that have been ignored.SOme are read and acted on but other submissions are ignored.

These are stall tactics.

They have given the wrong date of the CUed decision and are consistently using the date I filed the CUE claim as the date of the CUE.The CUE occurred in 1996 and 1997 decisions.

The issue was re characterized as completely different from the original CUE claim.

What gets me- since this is the 4th SSOC- exactly like the prior ones and I responded fully with VA legal citations-referring them back to the actual CUE claims-

is that they failed to comprehend my last response to this same SSOC.

My CUEs are based on lack of any SMC consideration in prior VA decision that determined the veteran was 100% Sec 1151 and 100% PTSD SC.

When I got my direct SC death award-I wrote to them and stated ( as well as on prior SSOC response) that these issues have been rendered moot because the VA now has to make a SMC determination as to direct SC conditions my husband had at death- 100% SC PTSD, 100% Sec 1151 stroke, and 60 % or greater, for 1151 heart disease, as well as a proper DMII rating because the award makes the CVA 100% direct SC, the CAD direct SC and the DMII as direct SC.This stuff all has to be rated.

Under the Nehmer court Order I also stated I am eligible for ALL accrued benefits due the veteran in his lifetime ( as he obviously had these conditions in his lifetime as proven by medical evidence) and SMC is an inferred issue when the medical evidence warrants SMC.The point of my CUE claims in the first place.

Question-I used to get many SSOCS, and my responses eventually awarded those claims.

Is anyone else here getting duplicate SSOCs like this?

Oddly enough they keep extending my time limits by sending these SSOcs-I respond and they dont mention the response or evidence but send another SSOC (same wording) with another time limit.

Not a single piece of my evidence has ever been read on this.

I wrote as part of response on the last response form that they cannot send this case to the BVA because they have made so many legal errors in the processing of these 2 CUE claims.

Maybe that is why I got another SSOC-

any thoughts?

This crap will take up my time next week-and of course maybe time to write to the Sub Committee H VAC again-

The response I get from the Director's office next week will determine the form that letter takes.

The letter I received on my award is written in very poor English and makes a statement regarding VA DIC case law that simply isn't a fact at all and has no legal basis.The actual question I asked that generated this new award letter was not even mentioned at all.

Sorry for this rant-I am angry that the VA employees illiterates and something has to be done about it.

[Chuck75]

Actually, there is a law to the effect that the SSA application can establish a claim date, and that the SSA application, if SSA awards SSDI, is also an application for VA benefits when the medical issues are the same.

The VA ignores the law, as far as I know, and uses the claim date of a VA application. At the very most, the VA might send a letter suggesting that the veteran file a claim, and possibly enclose the proper VA form..

Larry

I am thinking that when the VA got your SSDI letter for the same condition you are SC for that may have established an informal claim for benefits with an earlier effective date. If the VA knows you are getting SSDI for a SC condition that should be an inferred, or informal claim for IU. The VA resists that idea because I am sure there are many vets who have been on SSDI for years before they finally claim, or are awarded IU or 100%. This would mean a very large retro liability. When I asked for an EED for IU I based it on my SSDI date. The VA did not grant the EED for the SSDI date. They granted the EED because of the fact I was hospitalized at a VA hospital on the very same date as my SSDI date. That was the official reason for granting the EED, but I think they did not want to admit the EED for the SSDI.

What I think about Berta's sitution is that if the VA can delay Berta's claim for benefits given all she knows, and given the evidence she has submitted what do they do with claims from vets who are fairly ignorant of the process? No wonder vets give up!

[Pete53]

In the 90's the VA totally ignored many including my own claim when SSD was granted for the same diagnosis. Maybe I should CUE them and ask for EED stating the law if I knew what it was.

EFD VA 100% Nov 1993

EED SSD March 1991

I applied for VA June 1991 and SSD July 1991

Edited November 3, 2009 by Pete53

[deltaj]

The VA made clearly erroneous statements in my May 2009 award letter and I asked for correction on that basis.

I just got the 'correction'-it is worse than the one I wanted corrected. The director's office (of course I called them immediately) had a VSO call me yesterday but he didn't have a clue- another call to the director's office promised someone else would call me back on Monday-I asked for someone to call me this time who actually knows VA regs and case law.

Since I dont expect them to find anyone who actually has that ability at the Buffalo VARO - I am also preparing letter to someone at VA in DC who offered to help on this matter-but I wanted to make sure I took as many steps I could first to get this straightened out meself.

I also got with this letter another SSOC-this is the fourth one on my CUE claims.I have responded to them all and now they want me to respond again.

If any of you read my testimony to the Sub Committee Investigations/Oversight- the 53 submissions I made that VARO had ignored are building up into well over 60 submissions that have been ignored.SOme are read and acted on but other submissions are ignored.

These are stall tactics.

They have given the wrong date of the CUed decision and are consistently using the date I filed the CUE claim as the date of the CUE.The CUE occurred in 1996 and 1997 decisions.

The issue was re characterized as completely different from the original CUE claim.

What gets me- since this is the 4th SSOC- exactly like the prior ones and I responded fully with VA legal citations-referring them back to the actual CUE claims-

is that they failed to comprehend my last response to this same SSOC.

My CUEs are based on lack of any SMC consideration in prior VA decision that determined the veteran was 100% Sec 1151 and 100% PTSD SC.

When I got my direct SC death award-I wrote to them and stated ( as well as on prior SSOC response) that these issues have been rendered moot because the VA now has to make a SMC determination as to direct SC conditions my husband had at death- 100% SC PTSD, 100% Sec 1151 stroke, and 60 % or greater, for 1151 heart disease, as well as a proper DMII rating because the award makes the CVA 100% direct SC, the CAD direct SC and the DMII as direct SC.This stuff all has to be rated.

Under the Nehmer court Order I also stated I am eligible for ALL accrued benefits due the veteran in his lifetime ( as he obviously had these conditions in his lifetime as proven by medical evidence) and SMC is an inferred issue when the medical evidence warrants SMC.The point of my CUE claims in the first place.

Question-I used to get many SSOCS, and my responses eventually awarded those claims.

Is anyone else here getting duplicate SSOCs like this?

Oddly enough they keep extending my time limits by sending these SSOcs-I respond and they dont mention the response or evidence but send another SSOC (same wording) with another time limit.

Not a single piece of my evidence has ever been read on this.

I wrote as part of response on the last response form that they cannot send this case to the BVA because they have made so many legal errors in the processing of these 2 CUE claims.

Maybe that is why I got another SSOC-

any thoughts?

This crap will take up my time next week-and of course maybe time to write to the Sub Committee H VAC again-

The response I get from the Director's office next week will determine the form that letter takes.

The letter I received on my award is written in very poor English and makes a statement regarding VA DIC case law that simply isn't a fact at all and has no legal basis.The actual question I asked that generated this new award letter was not even mentioned at all.

Sorry for this rant-I am angry that the VA employees illiterates and something has to be done about it.

Each claim that this veteran filed was a claim for the maximum so if he had a second condition ratable at 60% or more then that additional disability could be given special monthly under 38 USC 1114 (s) unless a claim was deemed denied. Berta, Is there an instance where V.A. in a rating decision considered considered the veteran's age contrary to 38 CFR 4.19? If so that could be considered a CUE and there could have been benefits owed to the veteran during his lifetime. Also was there any instance where V.A. illegally reduced his rating contary to 38 CFR 3.343 and/or 38 CFR 3.344 which would be a CUE where there were benefits owed to the veteran during his lifetime. I suggest you read Thayer v. Shinseki and carefully look over your husband's informal claims to V.A. Next, think about the applicability of 38 CFR 3.201 to your case in light of evidence in support of your husband's Social Security claims and your claims for Social Security survivors benefits. During your husband's lifetime he never claimed diabetes or any of its secondary conditions. In terms of his entitlement to comepnsation for the diabetes or secondary conditions, a veteran would not be owed benefits until he made a formal or informal claim for service connection of a condition. What I'm thinking you should do is look over his informal claims and formal claims and look for any condition which would have been an inferred claim for a condition secondary to his diabetes under the M-21 V.A. adjudication manual. I kind of suspect this would be conditions like hypertension, atherosclerosis, and neuropathy but I'm not sure of this. There may be an inferred claim for a condition secondary to his diabetes. I know you are tired and you are discouraged, but I suspect V.A. recognizes that there was evidence of record on an inferred claim for a condition secondary to diabetes that the veteran was owed benefits for during his lifetime or some evidence of CUE in an earlier decision. There is a rather interesting post here on hadit entitled "V.A. duty to consider all conditions in claim, can't find a reference" dated September 22, 2009 which quotes the M-21 V.A. Adjudication Manual concerning chronic disabiities shown in the SMRs but not claimed at the time of the veteran's claim for service connection at the time of the veteran's original claim for service connection. That post states that in the M-21 it says that VARO should consider rating chronic conditions shown in the service records but not claimed by the veteran. Also I think I read somewhere recently that a person is diabetic if that individual has 2 blood sugar readings over a particular number. What I'm wondering is did your husband's diabetes become manifest to a degree of 10% or more during one year of his discharge (See 38 CFR 3.309) or prior to that while he was in service. Are you sure Berta that you have all of your husband's inpatient hospital records? (See 38 CFR 3.156 © but I'm not sure if anything would have been owed to the veteran during his lifetime if the service medical record (SMR) was not in the custody of V.A.) Sometimes medication administered can cause blood sugars to be high (hypoglysemia) so maybe there was an earlier instance of high blood sugar in your husband's service medical records or in V.A. records within one year of his discharge. Also I read a case recently where a particular regulation allowing decisions to be made by V.A. within a year of a decision was invalid. Was there any instance where V.A, made a decision within a year of a prior decision? Was there any instance where V.A. failed to consider this veteran's medical records at the time of a V.A. exam that would have given him any entitlement to an earlier effective date of one of his 100% ratings?

Edited November 3, 2009 by deltaj

[deltaj]

Each claim that this veteran filed was a claim for the maximum so if he had a second condition ratable at 60% or more then that additional disability could be given special monthly under 38 USC 1114 (s) unless a claim was deemed denied. Berta, Is there an instance where V.A. in a rating decision considered considered the veteran's age contrary to 38 CFR 4.19? If so that could be considered a CUE and there could have been benefits owed to the veteran during his lifetime. Also was there any instance where V.A. illegally reduced his rating contary to 38 CFR 3.343 and/or 38 CFR 3.344 which would be a CUE where there were benefits owed to the veteran during his lifetime. I suggest you read Thayer v. Shinseki and carefully look over your husband's informal claims to V.A. Next, think about the applicability of 38 CFR 3.201 to your case in light of evidence in support of your husband's Social Security claims and your claims for Social Security survivors benefits. During your husband's lifetime he never claimed diabetes or any of its secondary conditions. In terms of his entitlement to comepnsation for the diabetes or secondary conditions, a veteran would not be owed benefits until he made a formal or informal claim for service connection of a condition. What I'm thinking you should do is look over his informal claims and formal claims and look for any condition which would have been an inferred claim for a condition secondary to his diabetes under the M-21 V.A. adjudication manual. I kind of suspect this would be conditions like hypertension, atherosclerosis, and neuropathy but I'm not sure of this. There may be an inferred claim for a condition secondary to his diabetes. I know you are tired and you are discouraged, but I suspect V.A. recognizes that there was evidence of record on an inferred claim for a condition secondary to diabetes that the veteran was owed benefits for during his lifetime or some evidence of CUE in an earlier decision. There is a rather interesting post here on hadit entitled "V.A. duty to consider all conditions in claim, can't find a reference" dated September 22, 2009 which quotes the M-21 V.A. Adjudication Manual concerning chronic disabiities shown in the SMRs but not claimed at the time of the veteran's claim for service connection at the time of the veteran's original claim for service connection. That post states that in the M-21 it says that VARO should consider rating chronic conditions shown in the service records but not claimed by the veteran. Also I think I read somewhere recently that a person is diabetic if that individual has 2 blood sugar readings over a particular number. What I'm wondering is did your husband's diabetes become manifest to a degree of 10% or more during one year of his discharge (See 38 CFR 3.309) or prior to that while he was in service. Are you sure Berta that you have all of your husband's inpatient hospital records? (See 38 CFR 3.156 © but I'm not sure if anything would have been owed to the veteran during his lifetime if the service medical record (SMR) was not in the custody of V.A.) Sometimes medication administered can cause blood sugars to be high (hypoglysemia) so maybe there was an earlier instance of high blood sugar in your husband's service medical records or in V.A. records within one year of his discharge. Also I read a case recently where a particular regulation allowing decisions to be made by V.A. within a year of a decision was invalid. Was there any instance where V.A, made a decision within a year of a prior decision? Was there any instance where V.A. failed to consider this veteran's medical records at the time of a V.A. exam that would have given him any entitlement to an earlier effective date of one of his 100% ratings?

I went to the website of the U.S. Court of Veterans Appeals and typed in the phrase in his lifetime. One decision I found was 94-531 Thelma Veesart v. Togo West and that decision has a portion entitled Accrued Benefits with some case citations. Maybe there is something useful for you there in the Vessart case or another case.

[cowgirl]

Chuck an you elaborate on this 'SSA application law that 'can' establish the claim date please?

Berta does SSDI come into effect at all in your case?

As far as the duplication of SSOC - maybe I read somewhere and sure don't know where - that whenever new evidence is submitted a new SSOC is released. Releasing a new cycle from that automated paperwork dinosaur? Anythings possible, but in re-reading all the paperwork from a decade ago, thanks to Hadit, THANK YOU, I've recieved a new lease on life. I am concerned enough that I re-read everything for a week or so with pauses between. Because time flies especially for the claimant to file an appeal if its either 60 days for a SOC or a year for SSOC!!

A'yup, I read and RE-read these posts - found parts of it may just apply to me. Thanks Berta and Chuck.

Best to ya,

Cg'up2009!

Actually, there is a law to the effect that the SSA application can establish a claim date, and that the SSA application, if SSA awards SSDI, is also an application for VA benefits when the medical issues are the same.

The VA ignores the law, as far as I know, and uses the claim date of a VA application. At the very most, the VA might send a letter suggesting that the veteran file a claim, and possibly enclose the proper VA form..

Edited November 3, 2009 by cowgirl

[deltaj]

The VA made clearly erroneous statements in my May 2009 award letter and I asked for correction on that basis.

I just got the 'correction'-it is worse than the one I wanted corrected. The director's office (of course I called them immediately) had a VSO call me yesterday but he didn't have a clue- another call to the director's office promised someone else would call me back on Monday-I asked for someone to call me this time who actually knows VA regs and case law.

Since I dont expect them to find anyone who actually has that ability at the Buffalo VARO - I am also preparing letter to someone at VA in DC who offered to help on this matter-but I wanted to make sure I took as many steps I could first to get this straightened out meself.

I also got with this letter another SSOC-this is the fourth one on my CUE claims.I have responded to them all and now they want me to respond again.

If any of you read my testimony to the Sub Committee Investigations/Oversight- the 53 submissions I made that VARO had ignored are building up into well over 60 submissions that have been ignored.SOme are read and acted on but other submissions are ignored.

These are stall tactics.

They have given the wrong date of the CUed decision and are consistently using the date I filed the CUE claim as the date of the CUE.The CUE occurred in 1996 and 1997 decisions.

The issue was re characterized as completely different from the original CUE claim.

What gets me- since this is the 4th SSOC- exactly like the prior ones and I responded fully with VA legal citations-referring them back to the actual CUE claims-

is that they failed to comprehend my last response to this same SSOC.

My CUEs are based on lack of any SMC consideration in prior VA decision that determined the veteran was 100% Sec 1151 and 100% PTSD SC.

When I got my direct SC death award-I wrote to them and stated ( as well as on prior SSOC response) that these issues have been rendered moot because the VA now has to make a SMC determination as to direct SC conditions my husband had at death- 100% SC PTSD, 100% Sec 1151 stroke, and 60 % or greater, for 1151 heart disease, as well as a proper DMII rating because the award makes the CVA 100% direct SC, the CAD direct SC and the DMII as direct SC.This stuff all has to be rated.

Under the Nehmer court Order I also stated I am eligible for ALL accrued benefits due the veteran in his lifetime ( as he obviously had these conditions in his lifetime as proven by medical evidence) and SMC is an inferred issue when the medical evidence warrants SMC.The point of my CUE claims in the first place.

Question-I used to get many SSOCS, and my responses eventually awarded those claims.

Is anyone else here getting duplicate SSOCs like this?

Oddly enough they keep extending my time limits by sending these SSOcs-I respond and they dont mention the response or evidence but send another SSOC (same wording) with another time limit.

Not a single piece of my evidence has ever been read on this.

I wrote as part of response on the last response form that they cannot send this case to the BVA because they have made so many legal errors in the processing of these 2 CUE claims.

Maybe that is why I got another SSOC-

any thoughts?

This crap will take up my time next week-and of course maybe time to write to the Sub Committee H VAC again-

The response I get from the Director's office next week will determine the form that letter takes.

The letter I received on my award is written in very poor English and makes a statement regarding VA DIC case law that simply isn't a fact at all and has no legal basis.The actual question I asked that generated this new award letter was not even mentioned at all.

Sorry for this rant-I am angry that the VA employees illiterates and something has to be done about it.

Berta, Please read VA OPG Prec 7-2001. There is a bunch of material hidden in the V.A. General Counsel Precedent about the regulations and laws on Special Monthly Compensation. Next please read VA OPG Prec 6-99. I don't really know why the Prec 6-99 is pertinent but I'm thinking if your husband was given 100% schedular he was ineligible for SMC. I thought I read something about this somewhere on the internet recently.